No checks, no balances, just a fascist federal government
Jack Smith today moved to dismiss federal criminal cases against Donald Trump, cases meant to hold Trump accountable for his efforts to overturn the 2020 U.S. Presidential Elections and for his mishandling of classified documents. Smith is deferring, not to the scandalous Presidential immunity decision handed down by the Roberts Court last terms, but to U.S. Department of Justice (DOJ) policy against federal criminal prosecution of sitting Presidents. Smith wrote in today’s motion to dismiss the election overturning charges: “After careful consideration, the Department has determined that [Department of Justice] prior opinions concerning the Constitution’s prohibition on federal indictment and prosecution of a sitting President apply to this situation and that as a result this prosecution must be dismissed before the defendant is inaugurated.” Whether or not DOJ past opinions are legally sound or prudent, Smith’s decision to drop the federal criminal prosecutions is wholly unsurprising.
The DOJ, an executive branch agency, is never going to be an effective check on a criminal, authoritarian President. The President controls the DOJ. And no sitting President, including Joe Biden, has ever been willing to aggressively prosecute any prior President. Of course, that may change with Trump, but the point remains: the federal executive branch is never going to be a meaningful check on the federal executive branch. Nothing in the design of the United States suggests that the framers of its Constitution or the amendments that reworked it after the U.S. Civil War ever expected otherwise. The people who wrote the U.S. Constitution has just fought a bloody, difficult revolution against unconstrained exercises of executive power by the British parliament and monarchy (in Britain to this day the parliament has combine executive, legislative, and judicial power). They were not naive nor complacent about its inherent oppressiveness and danger.
Unfortunately, separation of powers within the U.S. federal government, part of the American antidote to unconstrained executive power is in shambles. The Supreme Court is in thrall to Presidential power generally and Trump’s power specifically. The Congress has been gutted and will be further gutted due to control by one or both houses by a Republican Party transformed from a legitimate party in a constitutional democracy to a combination cult of personality and criminal syndicate overtly committed to extra- and anti- Constitutional authoritarian government.
State sovereignty and authority, the other part of the American antidote to unconstrained executive power in the U.S. federal government, is about to be tested as it has never been. I do mean never. The U.S. Civil War was not about an authoritarian President and the collapse of federal checks on his or her power. At the level of the structure of the U.S. system of government that war was about the federal Congress’ authority over the states and its authority over and responsibility to individual Americans.
Today, many U.S. state governments, or branches of them, are gripped by the same anti-Constitional Republican Party as the federal government. But others are firmly in control of the remaining party that, however clumsy in operation, is expressly committed to American constitutional democracy and its utter rejection of an authoritarian President. The so-called “blue states” - a moniker I too will use, for convenience - now must decide what they are willing to do to fight a federal government that has capitulated to authoritarianism. They will have to learn what they are able to do in light of what they are willing to do.
What blue states cannot and should not count on is any signific help from the federal judiciary. That branch of the federal government, which, like the federal legislature does have some individual members opposed to an authoritarian President, is ultimately controlled by the U.S. Supreme Court. States may use lower federal courts to gum up the U.S. Supreme Court’s program in support of an authoritarian federal executive branch, but that won’t be enough to seriously block its entrenchment and its operations.
Ultimately, the blue states are going to have to use all currently Constitutional ways to refuse to do business with the federal government. They are going to have to retain as much of the wealth generated by their residents as possible and devote that wealth to strengthening themselves. Rather than work through the federal government, the blue states will have to work directly with one another to gain economies of scale, not only in trade but also in devising and implementing gstate statutes and policies that realize the twin aims of a democracy committed to rule of law: government in service to public welfare and to justice. Interstate governmental efforts must be formalized and utilized.
All this has no model or historical antecedent in United States history, though there are some lessons to be gleaned from American colonial and Revolutionary Era experiences. Mostly, though, blue state governors, state secretaries of state, state attorneys general, state legislators, and state courts are going to have to widen their scope of thought and action to an extent they never imagined they would.